Are electronic signatures legal in Brazil?
Brazil’s legal model is a tiered legal one. This means that Qualified Electronic Signature as a legal type of e-signature. This doesn’t mean that a non-QES e-Signature can’t be submitted in court, but it will need extra evidence to support it.
Brazil operates under Civil Law systems which are arranged according to a plan or a system and come from Roman law. Civil law systems are based on:
- Generally a written constitution based on specific codes (e.g. civil code, codes covering corporate law, administrative law, tax law and constitutional law) preserving basic rights and duties
- There is little scope for judge-made law in civil, criminal and commercial courts (only legislative enactments are considered binding for all)
- In some civil law systems, e.g. Germany, writings of legal scholars have significant influence on the courts
- Courts specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code;
- Less freedom of contract – many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system.
There are a number of provisions implied into a contract under the civil law system – this will often result in a contract being shorter than one in a common law country.
In Brazil handwritten signatures aren’t needed for a contract to be seen as valid, they are seen as such as long as legally able individuals have reached an agreement (through agreeing verbally, electronically or by physically signing).
Evidence that shows the terms & conditions of the agreement may have to be presented in court. And leading electronic signature software solutions can be used to support and contracts and give records as admissible evidence in court, under the Brazilian Code of Civil Procedure.
As an extra measure The Provisional Measure No. 2,200-2/01, which created the “Infraestrutura de Chaves Públicas Brasileira” (ICP Brasil), was created.
Esignatures used with the ICP-Brasil have authenticity, integrity, reliability and cannot be denied as evidence. The e-signature stays linked to the signed electronic document. If the document is changed the e-signature becomes invalid.